Herbert v. Lando

• Decision Date: 27 February 1985
• Docket Number: No. 74 Civ. 434-CSH.,74 Civ. 434-CSH.
• Citation: 603 F. Supp. 983
• Parties: Anthony HERBERT, Plaintiff, v. Barry LANDO, Mike Wallace, Columbia Broadcasting System, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

603 F. Supp. 983

Anthony HERBERT, Plaintiff, v. Barry LANDO, Mike Wallace, Columbia Broadcasting System, Inc., Defendants.

No. 74 Civ. 434-CSH.

United States District Court, S.D. New York.

February 27, 1985.

Cohn, Glickstein, Lurie, Ostrin, Lubell & Lubell, New York City, for plaintiff; Jonathan W. Lubell, New York City, of counsel.

Coudert Brothers, New York City, for defendants CBS, Inc. and Mike Wallace; Pamela G. Ostrager, New York City, Selene E. Mize, of counsel.

Green & Hillman, New York City, for defendant Barry Lando; Richard G. Green, Adria S. Hillman, New York City, of counsel.

Ronald E. Guttman, New York City, for CBS, Inc.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

In this action for defamation brought by a public figure plaintiff and arising out of a television program and subsequent magazine article, defendants Lando, Wallace, and Columbia Broadcasting System, Inc. ("CBS") moved for summary judgment dismissing the complaint. This Court granted the motion in part and denied it in part, thereby requiring trial on two particular statements ascribed to defendants. That decision is reported at 596 F.Supp. 1178 (S.D.N.Y.1984), with which familiarity is assumed.¹

Plaintiff and defendants now cross move for reargument pursuant to Civil Rule 3(j) of this Court. Plaintiff asks that the complaint be entirely reinstated. Defendants, ask that it be entirely dismissed. Both motions are denied.

Rule 3(j) provides that to succeed on a motion for reargument, the moving party bears the burden of "setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Implicit in that obligation is the conclusion that if such "matters or controlling decisions" are not demonstrated, the motion fails.

As for plaintiff, his further extensive briefs seek to reargue, without making the requisite showing, a considerable number of the adverse determinations contained in the Court's prior opinion. Only one argument warrants consideration here. That is the contention appearing in plaintiff's Main Brief on Reargument at 4:

"Plaintiff's position throughout this litigation, also advanced in his opposing papers, has been that he was defamed by the program and article as a whole and not simply by isolated statements removed from that overall defamatory context.... By failing to consider plaintiff's contentions regarding the defamations caused by the program and article as a whole, the court disregarded controlling precedent which holds that libel actions may be grounded upon the defamatory import of the publication as a whole."

Plaintiff supports this indictment by citing the string of cases set forth in the margin.² The fault in the Court's prior opinion, as perceived by plaintiff, is that the Court "erroneously treated plaintiff's position regarding the defamations at issue as restricted to eleven statements," id. at 2. That is a reference to eleven particular statements which, in his brief opposing summary judgment, plaintiff culled from the television program and the article and alleged were defamatory, false, and published with knowledge of falsity. The Court's prior opinion considered each of those eleven statements with respect to whether or not they were "actionable," that is, "susceptible of imposing liability at the hands of a reasonable jury properly instructed on the law." 596 F.Supp. at 1198.

No district judge particularly enjoys being told that he has "disregarded controlling precedent." To avoid that professional embarrassment, the judge relies (a) upon the briefs of counsel, and (b) his own knowledge of the law, as supplemented by independent research. The judge reasonably relies upon counsel to call to his attention "controlling precedent" bearing upon the issues at hand. These reflections are prompted by the fact that none of the nine cases plaintiff now identifies as controlling precedents which this Court disregarded was cited in plaintiff's 282-page brief in opposition to summary judgment, which cited 106 other cases. Nor was the argument presently put forward included in that brief, although the defendants, in their motion for summary judgment following extensive discovery, launched a broad scale attack upon the viability of plaintiff's claims.

If the plaintiff's new argument were sound, and the authorities now cited for the first time apposite, his motion for reargument would pose a question of substance, notwithstanding the Court's perhaps understandably puzzled state at not having been told about them before. In fact, however, the argument is not sound, and the cases do not focus upon the analysis pursued in the Court's prior opinion. In consequence, what emerges is not a puzzling case of advocate's amnesia, but an unsuccessful effort to recast claims which discovery has demonstrated are not actionable.

The cases now cited by plaintiff stand essentially for the proposition that whether or not statements are capable of a defamatory interpretation often turns upon the context in which they appear. It is quite true, as plaintiff argues on the present motion, that "libel actions may be grounded upon the defamatory import of the publication as a whole." The cases cited by plaintiff, fn. 1 supra, illustrate the working of that rule.

Golden Bear Distributing Systems of Texas v. Chase Revel, Inc. did not involve a public figure plaintiff. Hence the measure of liability was negligence, not malice, as in the case at bar. The holding upon which plaintiff relies relates to the initial inquiry of whether the article in question contained an actionable defamatory meaning. The purported quotation from the case (plaintiff's Main Brief on Reargument at 5) does not in fact appear in the Fifth Circuit's opinion; what does appear is this:

"The evidence presented at trial suggests that all the individual statements in the magazine article concerning Golden Bear of California's fraudulent activities and Golden Bear of Texas' representations to potential investors were true. The basis of the libel lies in the juxtaposition of truthful statements about one company with truthful statements about the illegal operations of an independent company of the same name located in a different state."

708 F.2d at 948.

Street v. NBC involved a suit by the prosecutrix and main witness in the famous Scottsboro rape trials. She sued NBC for defamation, NBC having televised a play dramatizing the role of the presiding judge at one of the Scottsboro trials. The plaintiff was held still to be a "public figure." Her claim was based on nine specific scenes in the play, each of which plaintiff contended contained false and defamatory statements of fact which she specifically identified. 645 F.2d at 1230-32. Having examined those statements in detail, the Sixth Circuit predictably concluded that "the facts recited above illustrate that the play does cast plaintiff in an extremely derogatory light. She is portrayed as a perjurer, a woman of bad character, a woman who falsely accused the Scottsboro boys of rape knowing that the result would likely be the electric chair." 645 F.2d at 1232. That recitation led to the equally unsurprising conclusion: "Taken as a whole, the play conveys a defamatory image of the plaintiff." Ibid. Having resolved in plaintiff's favor the issue of whether the play was defamatory, the Sixth Circuit then turned to the separate question of whether plaintiff had adduced evidence sufficient to support a jury verdict of malice. The court answered that question in the negative, and affirmed the district court's directed verdict for NBC:

"So long as there is no evidence of bad faith or conscious or extreme disregard of the truth, the speaker in such a situation does not violate the malice standard. His version of history may be wrong, but the law does not punish him for being a bad historian.

"The malice standard is flexible and encourages diverse political opinions and robust debate about social issues. It tolerates silly arguments and strange ways of yoking facts together in unusual patterns."

645 F.2d at 1237.

Hoffman v. The Washington Post Company considered whether five particular statements in a newspaper article about plaintiff, a trainer of athletes, were defamatory in respect of the efficacy of dietary supplements sold by plaintiff, a public figure within the limited area of his claimed expertise. Defendant moved for summary judgment. The district court declined to read the five statements "as discrete units, for the challenged publication must be read as a whole. Its content must be considered in its entirety and weighed in connection with its structure, nuances, implications, and connotations." 433 F.Supp. at 602 n. 1. The district judge concluded that the defendants' article "was defamatory because it imputed dishonest conduct to Bob Hoffman and tended to disgrace him and bring him into ridicule." Id. at 603. However, summary judgment was granted to defendants, after discovery, because "the record in this case fails to demonstrate that plaintiff could produce clear and convincing evidence that each defendant acted with actual malice," id. at 605.

Afro-American Publishing Co. v. Jaffe involved an appeal by defendants after bench trial in a libel action brought by a pharmacist who operated a local drugstore in Washington, D.C. Plaintiff, who was white, served a neighborhood where 80% of his customers were black. Plaintiff ceased distributing the defendant's newspaper "Afro" because he regarded it as racist and inflammatory. This provoked an editorial in "Afro" critical of plaintiff, prompting a suit for invasion of privacy and defamation. Plaintiff recovered compensatory and punitive damages on both counts. The District of Columbia Circuit, sitting en banc, reversed the award for invasion of privacy, 366 F.2d at 654, but affirmed the judgment for compensatory (although not punitive) damages for defamation. The court stated generally that the...